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Monday, August 31, 2009

Diplomatic Immunity

In an earlier post on civil litigation on behalf of human trafficking survivors, I briefly mentioned the ways that diplomatic immunity complicates work to help trafficking victims. After spending a summer in DC and a conversation where someone told me that she flat out refused to believe that a diplomat or someone involved with government could be a trafficker, this is an issue that has been on my mind again.

Diplomaticimmunity protects diplomats from lawsuit or prosecution under their host country's laws. In the Vienna Convention on Diplomatic Relations in 1961 it was agreed as international law. The official's home country can waive immunity, though many countries refuse to waive immunity in any circumstance. Countries that do waive immunity only do so for serious crimes unrelated to the official's role as a diplomat. Home countries can also choose to prosecute under their own laws. Thus, it is possible for diplomats to be punished for trafficking.

However, it is extremely difficult, partially because law enforcement are reluctant to investigate such cases given the low-likelihood of successful prosecution and potential repercussions. According to Ambassador Mark Lagon of Polaris Project and formerly the Ambassador-at-Large assigned by Congress to combat human trafficking, diplomatic immunity can become "diplomatic impunity," often shielding officials who are simply withdrawn from the host country if the country requests to waive immunity because of a trafficking case. Lagon argues that "The reflexive desire not to rock the boat in our relations with other countries given misplaced concerns about constant whining from their ambassadors or fear of backlash against U.S. diplomats must end."

A recent article in the Washington Examiner notes that exploitative labor conditions under diplomatic officials can make their employees vulnerable to trafficking, even if the diplomats are not the traffickers. Soripada Lubis, who entered a plea agreement in a trafficking ring case in February of 2009, utilized women's vulnerability because of their employment by diplomats, where they faced poor pay and horrible working conditions. The Examiner piece states that "According to court documents, the women enticed into Lubis' network came to the United States as domestic servants for diplomats from Saudi Arabia, Bahrain, Yemen and other countries. . . Prosecutors believe Lubis found the women by using contacts at the Indonesian Embassy, where he was once a driver."

Cases are certainly not confined to the US. In early August, the Independent reported on a case in the UK, where a 23-year-old woman came to London to work for a diplomat and his wife, with the impression that she would be a paid nanny with the ability to leave. The woman states "They made me get up at six to cook, clean and care for them and their children; I didn't get to bed until one in the morning. They treated me like dirt, throwing things at me, shouting at me and hitting me ... If I didn't do what they asked they would beat me and smash my head against the wall. Every time I asked to go home they threatened me. They said they would destroy my passport and harm my family. I was terrified because I knew they could; they have power in my country."

Their power extends to make them immune to repercussions. According to the article, "Although the woman reported her allegations to police, they advised her that the couple could not be prosecuted because of their diplomatic status. The Foreign and Commonwealth Office (FCO) contacted their embassy but were told that since they have returned to their home country they cannot be chased for the compensation payments ordered in January."

Some cases on behalf of trafficking survivors are making headway. In a recent New York case, a federal judge denied immunity to a Ambassador Lauro Liboon Baja, Jr., a former representative of the Philippine Mission to the United Nations. The Baja family is being sued on 15 counts of violations, including slavery and forced labor, by a woman they allegedly brought to the United States with false offers that she could find work as a nurse. Instead, according to an article at In These Times, "she was forced to work 126 hours per week for three months. Moreover, she was banished to the basement and fed only leftovers, and only paid $100." Judge Marreo denied Baja's claim to immunity, stating that under legal precedent this was a private act, not an official act; had the act been an official act, it is likely nothing could have been done.

Last summer the Government Accountability Office issued a report entitled "U.S. Government’s Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could Be Strengthened" detailing the situation, challenges, and potential directions for addressing this issue. The report identified three main challenges in these particular cases: immunity, which poses constraints for investigations, increased vulnerability of employees because of the power diplomats have, and the red-tape involved in these cases that can slow down and ultimately stymie investigative attempts. The report also suggested a number of ways that U.S. Government can strengthen its efforts to address abuse, including increase oversight, cooperation between agency, and training and technical assistance.

For any of these measures to succeed, though, I would argue that we must join Ambassador Lagon in advocating for an end to immunity as impunity.

1 comment:

hi, been searching the net hoping that i could get answers to my questions as i fell that what happen to me is not fair.. i am into the same situation that i was brought here in Australia to work for a diplomat (my employer) but been abused and found victim of human trafficking but then the case was ceased cause of this diplomatic immunity…i want justice but its like its the end of everything…i felt so helpless